Should Guantanamo Bay detainees have family visitation rights?

May 12, 2011

The Pentagon is considering allowing the families of detainees at Guantanamo Bay to visit them. International criminal lawyer Frank Rubino discussed and took questions on inmate rights and what visitation rights would mean for Guantanamo Bay detainees.

What are the rights to privacy of visitors seeing people in military prisons? May officials listen to the conversations between inmates and their visitors? If they could have visitors and their conversations are not private, it might actually be a mutual advantage to permit visitors.

A: Frank Rubino

In a normal military prison (Guantanamo not being normal) a prisoner has a right for friends and family to visit him. Usually, four visits a month of one hour each.

Officials may listen to conversations, both in person and telephone. They may be monitored and recording. There is no right to privacy in an inmate visit in a prison, unless that visit is an attorney/client visit.

It would be my opinion that there would be little intelligence value to these types of conversations.

All the proposals that I have seen regarding the possible shutdown of Guantanamo Bay and the transfer of the detainees to the United States seem to be based on holding the detainees in the equivalent of "SuperMax" prisons. Are there visitation rights for prisoners in "SuperMax" prisons? If not, would the detainees actual living conditions likely be worse if they were housed in the United States instead of Guantanamo?

A: Frank Rubino

The United States Bureau of Prisons only has one "SuperMax" prison and that's Florence, Colorado ADMAX. That institution would not be able to hold an additional 180 or more prisoners. Therefore, in order to move the Guantanamo detainees to the U.S. the governement would have to move the high security prisoners that are now in Florence out or build an addtion or new supermax prison. None of these alternative seem practical, therefore I'd assume that the Guantanamo prisoners would stay in Guantamo.

The Florence ADX "Supermax" allows limited visiting under extremely strict conditions. The visitation is through thick glass by telephone. Each inmate at Florence will be permitted to five visits per month, totaling 7 hours of visits with a maximum of three visitors.

Shouldn't we be the nation setting the example for other nations by following the Geneva Convention? I believe we would receive far more respect and less hatred if we were willing to follow the rules of human rights. Or am I missing something?

A: Frank Rubino

I completely agree with you. The United States should be the world leaders in the advancement in civil and human rights. In a civilized society, you simply can't lock people away and ignore the basic human rights they are entitled to. There is no reason that the detainees cannot receive family visits and still maintain the security of the institution.

Isn't it true that, if we say the enemy POWs have no rights, we justify another country saying that holds our POWs that they have no rights either?

A: Frank Rubino

That's absolutely correct. How can we expect an American soldier to be treated humanely and fairly by another country if we don't set the example ourselves in how we treat detainees we have in custody? We as the United States should be the ones setting the example, not following others.

Are those being held at Guantanamo classified as POWs? If so, why would they be tried in either military or civilian courts? Did we allow family visits for German POWs during WWII? How will we know that the war is over and we can release these POWs? Do not use the term POW when it is not accurate.

A: Frank Rubino

The Bush administration coined a new phrase called "enemy combatants". This phrase has been used since then to describe prisoners who are not part of a country military. It is a term used for members of non-military terrorist organizations. The prisoners held in Guantanamo do not fulfill the definition of POW as defined by the Geneva Convention since they are not members of the "regular army" of a particular country.

It is my opinion that the prisoners at Guantanamo should be tried in military courts because the crimes they are accused of are terrorist-type crimes as opposed to civilian-type crimes. Further, the crimes they allegedly commited were directed at the safety and security of the entire United States as opposed to an individual crime, such as murder, rape or robbery. Becuase of this, these detainees are alleged to be at war with the United States and thus a military court is a more suited place for them to be tried.

I do not know what we did with German prisoners 65-70 years ago, but I do know that we should offer basic human rights to detainees we are holding today.

Would we have to bear the cost of these visits - travel, housing, etc.?

A: Frank Rubino

The logistics of visitation could become very complicated since the family members of these detainees do not live in the United States. I'm sure the great majority of them would be coming from countries in the Middle East. First, they would have to obtain travel documents, such as visas to the United States, in order to visit. It would be my hope that if the visitation were allowed the cost of travel would be born by the family member travelling and not at the expense of the United States. Once the family member arrives in the United States, the government would have to provide trasportation from south Florida to Guantanamo or have a contractor provide that transportation - but I believe it should be at the vistor's expense, not the government's. Citizens of the United States who are detained in our prisons for domestic criminal law violations, their families do not receive free transportation, and neither should the detainees' families.

I hope that I've adequately answered your questions on a subject that is quite controversial, but in parting let me say that I totally agree with the questioner who brought up the most important point: How we can expect fair treatment of our soliders if we don't treat our POW's with the same fair treatment?

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Frank Rubino

Frank Rubino is a Miami, Florida international criminal defense attorney that has defended some of the most high profile international criminal cases in recent history.

Frank Rubino is internationally know for his international criminal defense work and is the International Criminal Expert for CNN and Fox News. He has handled case for clients across South America, Europe, the Middle East, and Asia. He provides proactive criminal defense for any international crime including fraud, drug charges, and business related criminal charges.